The Equality Bill: Impact on the
construction sector

The Equality Bill 2009 - 2010, which was
published in April 2009, is currently passing through
Parliament. The Government has indicated that
most of the Bill is due to come into force in October 2010, with
Public Sector Equality Duties to come into force in April
2011. There is ongoing consultation on
non-statutory guidance and Codes of Practice, and Policy Statements
have been published.

Summary of the Bill

The Bill has two main purposes – to
harmonise discrimination law, and to strengthen the law to support
progress on equality. The Bill will bring together and re-state
existing discrimination legislation. The Bill will also strengthen
the law in a number of areas.

The Bill currently spans 210 clauses and 28
schedules. The proposed changes will affect many
areas of business, including employment practices, age and gender
discrimination and so on.

This note highlights the proposed change in
the law in respect of “reasonable adjustments”, and draws attention
to proposals in relation to procurement by public authorities.

Reasonable Adjustments

The main change affecting construction
operations and buildings will be to make it easier to claim
“reasonable adjustments” from service providers.

It would no longer be necessary to
show, as under existing law, that the provider's practices,
policies and procedures make it “impossible or unreasonably
difficult” to access the service. In relation to
“physical features”, such as access to and design or layout of
buildings, or fixtures or fittings there is a new duty.
The new duty is a requirement, where a physical
feature puts a disabled person at “a substantial disadvantage… in
comparison with persons who are not disabled, to take such steps as
it is reasonable to have to take to avoid the
disadvantage”. In addition, if a disabled person
would, but for the provision of an auxiliary aid, be put at such a
disadvantage there is a new duty to take such steps as it is
reasonable to have to take to provide the auxiliary aid.

A person has a
disability if he has a physical or mental impairment, and the
impairment has a substantial and long-term adverse effect on P’s
ability to carry out normal day-to-day activities.

A failure to comply with the duties
is a failure to comply with a duty to make reasonable adjustments,
with no defence of justification.

The Government recently agreed
amendments to the Bill proposed by the House of Lords so that
'substantial' will be defined to mean 'more than minor or
trivial'.

The new, more onerous, duty will mean that
when commissioning and designing new buildings, and in relation to
existing buildings, service providers will need to take greater
care to ensure that disabled persons are not at a “substantial
disadvantage” when compared with others who use the
buildings. This will be all the more important
when the Bill is enacted since there will be greater public
awareness of the differences between the current and new
legislation and the fact that it may be easier to make claims for
reasonable adjustments.

Procurement

Under the Bill the Government may impose
duties on a public authority that is a contracting authority within
the meaning of the Public Sector Directive in connection with its
public procurement functions. (A failure in respect of a
performance of such a duty imposed will not confer a cause of
action at private law).

In a Policy Statement published in January
2010, the Government Equalities Office (“GEO”) said although public
bodies should already be taking equality into consideration as part
of their procurement processes under the existing public sector
procurement equality duties, it did not believe this happens as
frequently or as consistently as it could. The
GEO had therefore proposed that a legislative imperative was needed
to drive up performance and consistency in the use by public bodies
of their procurement activities to contribute to equality
outcomes.

The GEO said it will require public bodies
that are also contracting authorities in relation to their public
procurement activities (excluding purchasing activities which fall
below the thresholds set by the Public Sector Directives) to:

consider using equality-related criteria, where they are
relevant to the subject matter of the contract and are
proportionate; and

consider using equality – related contract conditions where
they relate to the performance of the contract and are
proportionate

The GEO said that it continues to believe
that “poor equality performers should not benefit from public
sector procurement and that this explicit message should be made
clear to public authorities when considering who to invite to bid
for contracts and to potential suppliers when considering
bidding”.

The GEO intends to build on current best
practice guidance in order to provide clarity in this regard, and
to ensure that appropriate quality considerations, such as whether
a potential contractor has breached discrimination legislation, are
made at the earliest stage in the procurement process.

The message is clear.
Public authorities will be expected to do more in its procurement
activities to further equality. If they are to participate in
publicly procured contracts, contractors will need to ensure that
they themselves have complied and will comply with existing and
proposed equality legislation (in all areas) and have evidence of
this. If they are not already doing it, to
demonstrate compliance with discrimination legislation, contractors
should carry out “equality audits” of their organisations as soon
as possible.

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The information on this website is of general interest about current legal issues and is not intended to apply to specific circumstances. It should not, therefore, be regarded as constituting legal advice.